The recent case of Sanderson -v- Staffordshire Moorlands has brought conversation about the use of the Community Protection Notice (CPN) to the fore again. It is fair to say that the CPN has been one of the tools within the ASB, Crime and Policing Act 2014 (ASB Act) that has attracted the most discussion.
The initial debate appeared to arise due to a lack of familiarity. Whereas the other tools were largely based on that we had been commonly using prior, the CPN was a substitute for lessor known powers, such as littering notices. It meant that the CPN felt far more “new” than any of the other powers within the ASB Act.
We also found ourselves faced with new terminology. If you deliver an ASB service within a registered provider or Council, you will be used to the definition of ASB including words such as nuisance, annoyance, harassment, alarm or distress. The definition for the CPN uses different language, describing it as behaviour that is having a detrimental impact. Compounding this further still, we are used to working with the standard of proof being the civil one: on the balance of probabilities. For the CPN, the standard of proof is simply whether an officer has reasonable grounds to believe that the test has been met.
Without any real guidance about what this means in reality, beyond what is laid out in the statutory guidance that accompanies the ASB Act, different organisations have applied different interpretations, using different approaches towards things like the behaviour they use the tool to address, the level of evidence they seek out and how wide they require the impact of the behaviour to be felt.
Of all of these areas of possible inconsistency, the one of real discussion has centred on the behaviour that CPN’s can be used to address. The powers that the CPN replaced, coupled with the rhetoric in the statutory guidance, suggests that it was introduced as a way of quickly tackling environmental issues, such as littering, condition of gardens, noise issues etc. The legislation does not, however, include provision that limits the CPN use to only these circumstances. The test for issuing the tool is incredibly broad and therefore can encompass a wide range of behaviours; behaviours that we have previously been used to tackling with court orders, such as injunctions and ASBOs. Not only have the behaviours been akin to those previously addressed by court orders, the terms within some of the CPNs have also been similar, including non-associations, curfews, exclusion and such like. The stark difference is that a court order comes with judicial scrutiny, with an independent person considering whether it is appropriate and the terms within proportionate, as well as the ability for the perpetrator to defend the making of it, whereas the CPN does not. There is a right for the perpetrator to appeal the issuing of a CPN and we may see this right being exercised more frequently in the future.
The increasing interplay being the CPN and Criminal Behaviour Order (CBO) is also an interesting one. You will be aware that whilst a CBO is similar to a Part 1 Injunction in terms of it containing prohibitions and positive requirements, it is far more criminal in nature. A breach is a criminal offence and therefore comes, if found guilty, with the defendant receiving a criminal record. This is different to an injunction, where a breach is contempt of court and does not result in a criminal conviction. Indeed, part of the justification for moving from the ASBO to the injunction was to stop people, particularly children and young adults, from getting caught up in the criminal justice system.
The main difference between a CBO and an injunction is that the latter is a standalone order, whereas the CBO can only be applied for alongside a criminal prosecution. Some organisations are prosecuting for breach of CPN and making an application for a CBO alongside this. In some instances, this is likely to be excellent practice but the concern is where the matter is one that justifies a court intervention, such as an injunction, from the off-set, yet the CPN/CBO root is used as a way to shortcut this, potentially leading to victims suffering for longer and perpetrators being criminalised unnecessarily.
The question that undoubtedly comes to mind is whether the CPN is being used as a way of sidestepping injunction applications? Similar conditions are being included within and, if it does not have the desired effect, a CBO can be applied for on breach which is often cheaper and quicker than making an injunction application. I say this understanding all sides of the argument. A police officer who has not been provided with any training on the use of the civil injunction, which comes with entirely different rules to criminal law in terms of evidence presentation, application and dealing with breaches, and who works for a force who does not have the budget to make civil applications, is understandably going to be considering the tools that are more accessible to them.
What does need to be considered is that CPNs cannot be used against those under 16 years of age. Some organisations have taken the approach of using the CPN against the parent, guardian or carer, ordering them to take control of their children. Again, this could be seen as a way of avoiding a more difficult (but arguably more appropriate) route of taking action against the young person, perhaps through an Acceptable Behaviour Contract (ABC) and then Injunction, if required. The recent Sanderson case has, however, put paid to this approach. The court determined that the CPN should be used to tackle the behaviour of the person actually causing the problem. There is a clear difference between issuing a CPN to the owner of a fast-food restaurant, who has not installed bins outside leading to a litter problem and issuing one to a parent to take responsibility for their child. Unless the parent can be seen to be directly involved in the ASB, or actively encouraging or facilitating it, then this case tells us that it cannot be found that the parent is responsible nor a CPN given to them in this manner.
Organisations have also considered the use of CPNs against private landlords, as a way of getting them to control anti-social tenants. It is likely that the principles in Sanderson would be argued in any future examples of use in this way unless the landlord can be shown to be directly involved in the ASB.
So, what does the above mean in reality?
The CPN is clearly a valuable addition to the ASB toolkit, however, to be used most sensibly, and to best effect, the following must be considered:
- Organisations should have a clear position on their approach to using the CPN, including the types of behaviour it can be used to address, the level of evidence that is required etc.
- We must understand the power of these tools. They do not require court approval, yet can ultimately result in a criminal record. We must, therefore, ensure we are using them appropriately and responsibly.
- It is important that we use the right tool, rather than simply the easiest. This decision needs to be made by considering the severity of the behaviour, the harm being caused to victims, the outcome we are seeking and whether we truly believe that the tool will stop the ASB;
- Regardless of the behaviour that we chose to tackle with a CPN, we must make sure that the conditions that we include are proportionate and necessary. They will be necessary if we can show that they are designed to stop behaviour that the perpetrator has engaged in. Proportionality can be shown by ensuring that the condition is not wider than is required. This was a principle that was highlighted in the Stannard case, a case that also stated that CPN’s should not be for an indefinite amount of time and need a clear end date to be included.
- We should only use CPNs against the person perpetrating the ASB unless we can show that they are directly contributing to the problems.